Lee J. STRANG: A Comparison of the Historical Constitution and Originalism
Appearances May Be Deceiving
As an American legal scholar whose primary research is on constitutional interpretation and its originalist school, the concept of the Historical Constitution in Hungary’s Fundamental Law offered a fascinating comparative opportunity. The Historical Constitution and Originalism at first blush appear similar in origin and purpose. However, as one digs deeper, one sees that Originalism and the Historical Constitution are significantly different. In this Essay, after briefly describing both concepts, I explain their apparent similarities and substantive differences. I close with some reflections on why they are different.
II. The Historical Constitution and Originalism: Appearances May Be Deceiving
The Historical Constitution is a concept found in the Hungarian legal system. Its most definitive articulation is in the 2011 Fundamental Law of Hungary, where Article R(3) states: “The provisions of the Fundamental Law shall be interpreted in accordance with . . . the achievements of our historic constitution.” The 2011 Hungarian Fundamental Law was the first new post-communist constitution because the existing written constitution was the 1949 communist-inspired document that was heavily amended during and after 1989. Prior to 1949, Hungary operated without a permanent written constitution under the accumulated laws from the Kingdom’s foundation in 895. This customary law system was similar to the United Kingdom’s.
Article R(3) was placed in the Fundamental Law as a response to an interpretative dilemma faced by the National Assembly. Normally, national constitutions are interpreted in light of their contexts, and an important aspect of context is a constitution’s preceding legal system. For instance, in the United States, the prior constitution (the Articles of Confederation) is employed to help interpret the current Constitution’s meaning. In Hungary, however, there were two problems. First, the 2011 Fundamental Law drafters believed that the 1949 communist-inspired constitution was a foreign, unjust legal regime—it was an historic aberration—that should not influence the Fundamental Law’s meaning.Second, the 2011 Fundamental Law drafters believed that Hungary’s long-standing customary legal system should be used to interpret the Fundamental Law, but what parts? Prior to 1949, Hungary’s legal system was a customary legal system that included legal documents, rules of law, governmental institutions, and authoritative traditions, but how to sift through over 1000 years and identify those facets of the customary system that should influence the 2011 Fundamental Law’s meaning?
The Historical Constitution is a relatively new concept in Hungarian constitutional jurisprudence. There is modest caselaw on the subject and scholars dispute its meaning and how to employ it. The most important tasks for the Hungarian legal system to enable it to follow Article R(3)’s injunction are to specify what “the achievements” are and, once identified, how they will operate in interpretation.
Originalism is the theory of constitutional interpretation in the United States (and elsewhere) that the text’s public meaning, when it was ratified, is the Constitution’s authoritative meaning. This means that, for example, the meaning of “religion” in the First Amendment is its public meaning in 1791, and that officers today should follow that meaning in their official duties. More technically, Originalism has two key components: the fixation thesis, and the constraint principle. The first posits that the Constitution’s meaning is fixed at ratification, and the second is that this constitutional meaning should constrain officers and their official actions. Today, Originalism has grown into a sophisticated theory and is likely the most influential theory of interpretation in the United States with a working majority of Supreme Court justices, many lower federal and state court judges, and one of the major political parties describing themselves as originalist.
On their face, Originalism and the Historical Constitution appear to be similar in a number of important ways. Both direct interpreters to look for constitutional meaning in the past. Originalism does so by instructing interpreters to look at information contemporary with ratification, and the Historical Constitution points to the pre-1949 Hungarian legal system’s achievements. Second, both the Historic Constitution and Originalism purport to do so out of respect for their respective nations’ current, actually operating legal systems. Originalists claim that the Constitution’s original meaning is its current authoritative meaning, no matter how it might be obscured by contrary practices, such as nonoriginalist precedent. The Hungarian National Assembly inserted the Historical Constitution Clause in Article R(3) to tie the 2011 Fundamental Law’s meaning to (what it stated was) the authentic constitutional history of Hungary, and not the “foreign” “communist constitution of 1949.” Third and sociologically, both tie their respective constitutions to the nations’ foundational origin and history. In the American context, Originalism binds current constitutional meaning to the unique and widely-respected American Founding, Framing, and Ratification. The Historical Constitution Clause similarly binds the Fundamental Law to the deep, one-thousand year Hungarian legal tradition.
Up to this point, it appears that Originalism and the Historical Constitution perform similar roles in American and Hungarian constitutional interpretation. But that is misleading. Originalism and the Historical Constitution are substantively different, and in many ways.
Though Originalism and the Historical Constitution are both theories of meaning of current constitutions, they approach their tasks differently. Originalism identifies the text’s meaning as the public meaning of the same text at the time of its ratification. By contrast, the Historical Constitution does not weigh in on that issue: it does not say whether the meaning of the Fundamental Law’s text is its current meaning, its original public meaning, or something else entirely. Instead, it is narrower than Originalism: it says only that the Fundamental Law’s meaning—however one understands or derives it—must be “in accord” with the “achievements” of the past legal system.
Article R(3) is itself evidence of this difference. If the linguistic practices in 2011 would have directed interpreters to look to the pre-1949 legal system for aid interpreting the 2011 Fundamental Law, then the Article is unnecessary. If the linguistic practices in 2011 would not have directed interpreters to look to historical achievements, then Article R(3) provides an additional input to interpretation that has the potential to change the Fundamental Law’s meaning from its 2011 public meaning. The key point is that the object of Originalism—what the text’s meaning is—is not addressed by the Historical Constitution Clause, and instead it addresses a separate input to interpretation.
Originalism requires officers to identify and follow the text’s fixed public meaning from when it was ratified. Once an interpreter has uncovered the original meaning, then the interpreter must apply that very same original meaning. The Historical Constitution seems to work differently. Article R(3) appears to order interpreters to interpret the Fundamental Law “in accordance with” the Historical Constitution. This separates it from the Fundamental Law and the former is an input into the latter’s meaning, suggesting that the latter has its own independent integrity. One way to get at this is to consider what would happen if Article R(3) did not exist. The Fundamental Law would still have a meaning that would be identified and followed by government officers, and that meaning would be different from the meaning of the actual Fundamental Law with its Article R(3).
Originalism and the Historical Constitution also aim at different interpretative targets. Originalism directs interpreters to find the text’s public meaning at the time of ratification, while the Historical Constitution directs interpreters to past “achievements” for meaning. These are different objects. The Historic Constitution’s “achievements” appear to include a variety of phenomena, none of which is linguistic meaning. A recent summary of achievements identified by the Constitutional Court included “judicial independence, the right to legal remedy, judicial review of administrative acts, freedom of the press, disciplinary liability of judges, religious freedom, and local self-government.” These achievements are important; they are not linguistic meaning.
Third, the Historical Constitution and Originalism operate differently. The text’s public meaning is the product of its conventional semantic meaning, in public context. There are a variety of sources for these various components of the original meaning, including contemporary practices. These practices, however, operate within Originalism as evidence for or against different public meanings. By contrast, the Historic Constitution’s achievements appear to be “paradigm cases.” A paradigm case operates in a number of ways in constitutional interpretation. Most importantly, it operates as a basis from which to analogize to other propositions. Second and relatedly, a paradigm case operates as a limit beyond which constitutional interpretation may not operate. The key point is that paradigm cases are not public meaning.
There may be other ways in which the Historical Constitution and Originalism are substantively different, but these suffice to show that appearances are deceiving.
III. Reflections on the Impact of Context
But this raises the question: why are Originalism and the Historical Constitution so different given their apparent similarities? There are likely many reasons for the difference, and I will focus on one that arose from my analysis.
Originalism works (the way it does) in the United States because the Constitution arose out of a unique lawmaking process that had and continues to have archtectonic status in the American legal system. The product of this singular event is the “supreme Law of the Land,” and Originalism’s insight is that this law’s meaning is a product of that unique lawmaking event.
The Historical Constitution Clause is a constitutional response to a legal system that did not join together a unique founding moment to a unique constitution. Instead, the Hungarian legal system had an English-style constitution that grew and developed over a thousand years. This legal system produced not one written constitution as an “achievement” but a large number of achievements. Moreover, given the nature of the legal system, there is disagreement and unclarity about what the achievements are.
This circumstance alone, I don’t think, would preclude use of Originalism to interpret the Fundamental Law because, in principle, the text’s public meaning in 2011 could be its authoritative meaning. Instead, the 2011 Fundamental Law does not enjoy the same privileged place in the Hungarian legal system that the U.S. Constitution holds in the American legal system. In particular, the 2011 Fundamental Law is recent, and it does not hold (at least not yet) the same untouchable status in the Hungarian legal system as does the U.S. Constitution. That role in the Hungarian legal system is played by the ‘small-c’ Hungarian constitution that includes the Fundamental Law coupled to the Historical Constitution’s achievements. And for this reason, the Historical Constitution is valuable to the Fundamental Law.
Comparative constitutional analysis provides a means for scholars from different countries to learn about other countries’ constitutions and, in doing so, to learn more about their own constitutions. In this brief Essay, my goal was to show that learning about the Hungarian concept of the Historical Constitution has helped me better understand my American Constitution, and I hope this Essay may shed some additional light for my Hungarian and European colleagues on their own constitutions as well.
 The Fundamental Law of Hungary, art. R(3) (2011).  For example, the current Constitution’s Commerce Clause is correctly seen as a response to the lack of a national power to regulate interstate commerce, and its attendant problems. Erwin Chemerinsky, Constitutional Law: Principles and Policies 464 (6th ed. 2019).  See Katalin Egresi, Role of the Holy Crown Doctrine and ‘Historical Constitution’ in the Hungarian Constitutionalism, 1 Studia Juridica et Politica Jaurinensis 10, 15-17 (2014) (describing the Historical Constitution as a means to “return to the constitutional situation of the past”).  The Fundamental Law of Hungary, National Avowal (2011).  Id.  See Miklos Konczol & Istvan Kevevari, History and Interpretation in the Fundamental Law of Hungary, 5 Euro. Papers, 161, 170 (2020) (summarizing the case law).  See Ferenc Horcher, Is the Historical Constitution of Hungary Still a Living Tradition? A Proposal for Reinterpretation 89, in The Concept of Constitution in the History of Political Thought (Gornisiewicz & Szlachta eds., 2017) (describing the problems of definition of the Historic Constitution).  Lee J. Strang, Originalism’s Promise: A Natural Law Account of the American Constitution 27-30 (2019).  The original articulations of these commitments are found at Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1 (2015); Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2940215 (visited June 28, 2021).  In some interpretative contexts but certainly not all.  See Gabor Schweitzer, Fundamental Law–Cardinal Law–Historical Constitution: The Case of Hungary Since 2011, 1 J. Eur. Hist. of Law 124 (2013) (describing the “historicizing elements” of the Fundamental Law); see also Balazs Schanda, Hungary’s Christian Culture: A Subject of Constitutional Protection, 23 Studia z Prawa Wyznaniowego 55 (2020) (arguing that the Fundamental Law’s protection of religious liberty and Christian culture is a manifestation of the Fundamental Law’s commitment to protect Hungary’s cultural identity).  The Fundamental Law of Hungary, National Avowal (2011).  The Fundamental Law of Hungary, art. R(3) (2011).  With the caveat that many originalists argue that constitutional meaning is mediated by constitutional precedent. See Lee J. Strang, Originalism’s Promise: A Natural Law Account of the American Constitution 91-141 (2019).  Miklos Konczol & Istvan Kevevari, History and Interpretation in the Fundamental Law of Hungary, 5 Euro. Papers, 161, 170 (2020).  Compare Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government 178-95 (2001) (explaining the author’s paradigm case method).  See J.M. Balkin & Sanford Levinson, Comment, The Canons of Constitutional Law, 111 Harv. L. Rev. 963 (1998) (describing canons of constitutional law cases); Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011) (describing those cases that American legal arguments must reject); see also Steven J. Burton, An Introduction to Law and Legal Reasoning (3d ed. 2006) (explaining common law legal reasoning).  U.S. Const., art. VI, § 2.  See William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U.L. Rev. 1455, 1457 (2019) (“Officially, we treat the Constitution as a piece of enacted law that was adopted a long time ago; whatever law it made back then remains the law, subject to various de jure alterations or amendments made since.”).
LEE J. STRANG, J.D., LL.M.: Professor Strang joined the University of Toledo College of Law in 2008, was granted tenure in 2010, and was named John W. Stoepler Professor of Law & Values in 2015. Before that, he was a visiting Professor at Michigan State University College of Law. A graduate of the University of Iowa, where he was Articles Editor of the Iowa Law Review and Order of the Coif, Professor Strang also holds an LL.M. degree from Harvard Law School. During the fall, 2015, Professor Strang was a visiting scholar at the Georgetown Center for the Constitution. In 2016, he was appointed to the Ohio Advisory Committee of the U.S. Commission on Civil Rights. The University of Toledo awarded Professor Strang its Outstanding Faculty Research and Scholarship Award in 2017. During the 2018-2019 academic year, Professor Strang was a visiting fellow at the James Madison Program at Princeton University. Professor Strang received The University of Toledo's Inclusive Excellence Award in 2021 for his contributions to the University's diversity, and President Postel conferred on Professor Strang the 2021 UToledo Creative and Scholarly Activity Award.